Final Order 1

Order Details: Notice of Motion
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MHCC010135292019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4943 OF 2019
IN
S.C. SUIT NO.1273 OF 2017
Mrs. Shamina Haji Mohammed Petiwala.
Age: 45 years, Occ: Housewife,
Res: Flat No.3, Shiv Prasad Building,
1st floor, 720, Lohar Chawl, Mahim,
Mumbai 400016. .. Plaintiff.
Versus
Asif Abdul Aziz Darvesh
Age: 49 years, Occ: Business,
Star Mansion, 3rd floor, Clare Road,
Next to Christ Church School,
Byculla, Mumbai 400 008. .. Defendant.
Advocates
Gandhy for the defendant.
C. K. Pande advocate for the plaintiff.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 21st October, 2020
ORAL ORDER
Heard parties on notice of motion moved on behalf of the
defendant for restitution of his possession in suit premises and restoring
status quo ante as it existed on the date of filing of the suit.
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2. Gala No.2, Chandani Bazar, Victoria Road, Opposite Gloria
Church, Byculla (East), Mumbai 400 027 is the suit premises. Plaintiff
filed the suit for injunction and claimed temporary injunction
restraining the defendant from dispossessing her from suit premises
without following due process of law.
3. Contention of advocate for the defendant is that the plaintiff
moved the Hon’ble vacation Judge on 30.05.2017 whereby the Court
passed ad-interim order directing both parties to maintain status quo till
06.06.2017. Hence the defendant did not visit the suit premises till
06.06.2017. Then plaintiff took out Notice of Motion no.2790/2017 in
the present suit against the defendant seeking temporary injunction.
Plaintiff failed to prove her possession over suit premises, hence her
Notice of Motion no.2790/2017 is dismissed on 06.10.2017. However
this Court directed the defendant not to create third party rights in suit
premises and further appointed Court Receiver to visit suit premises and
file status report. In the meantime, the plaintiff visited the suit premises
on 30.06.2017, broken the lock and entered in suit premises by
committing breach of order dated 30.05.2017. Defendant immediately
taken photographs of the plaintiff while entering in suit premises.
Hence, the defendant had taken out Notice of Motion no.2899/2017 for
contempt against plaintiff but the same is dismissed on 06.10.2017 on
the ground that sufficient cause has not been made out to held the
plaintiff in contempt which the defendant has not been able to prove at
this stage. Then the defendant took out Notice of Motion no.2532/2018
for direction from this Court to the Court Receiver to take physical
possession of suit premises and appoint the defendant as agent of the
Court Receiver and further to put the defendant in possession of suit
premises. Said Notice of Motion no.2532/2018 is pending.
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4. Plaintiff has not challenged the order dated 06.10.2017 rejecting
her Notice of Motion no.2790/2017 seeking temporary injunction
against the defendant, hence the said order attained the finality. The
Court Receiver filed his status report on 19.12.2017 in compliance of
order dated 06.10.2017 and observed that suit premises is found under
repair/construction and scrap material is scattered in the suit shop.
Court Receiver further observed that there was no light in the suit
premises, electric wires and fan were placed to be hung and there was
no business activities going in the suit premises but plaintiff was present
in the suit premises.
5. Defendant had filed additional affidavit in Notice of Motion
no.2532/2018 wherein he stated that the plaintiff has given suit
premises to one M/s. R.J. Homi Centre on Leave and Licence basis for
carrying on business of Sofa making. Hence on 07.09.2019, the Court
directed the defendant to serve copy of notice of motion alongwith
additional affidavit to said M/s. R. J. Homi Centre but inadvertently
name of R.J. Foam Centre was stated as R.J. Homi Centre. Subsequently
one Riyaz Pawar, who was carrying on business in the name of R.J.
Foam Centre, filed affidavit dated 04.11.2019 stating that he is not
concerned with suit premises and the plaintiff and her son are carrying
business of selling foam in the name and style of M.S. Traders from the
suit premises. Then on 10.12.2019, plaintiff has filed an application for
withdrawal of the suit on the ground that she has filed a substantive
suit before the Small Causes Court. Defendant filed objection to said
application and it is kept for hearing.
6. Plaintiff had filed Suit No. 3464 of 2014 and 1026 of 2015
against the defendant claiming her 1/3rd shares in respect of
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compensation being received by the defendant in respect of suit
premises. Plaintiff was never in possession of suit premises. Defendant
was in exclusive possession of suit premises. Defendant filed on record
electric bills as well as other documents to show that he was in
possession of suit premises. But on 30.06.2017, plaintiff dispossessed
the defendant from suit premises by taking undue advantage of status
quo order dated 30.05.2017 passed by this Court. Plaintiff has sought
withdrawal of the suit which would result into vacation of order passed
by this Court and appointment of receiver in respect of suit premises. In
view of above facts and circumstances, he prayed for making absolute
notice of motion.
7. Contention of advocate for the plaintiff is that present notice of
motion does not survive since the defendant has already took out the
very same notice of motion no. 2532/2018 for restoration of possession
of suit premises through the Court Receiver. Said notice of motion was
heard and the defendant made a statement that M/s. R.J. Homi Center
owned by Mr. Riyaz Pawar and one M.S. Traders is also carrying
business in the suit premises divided in two parts. Mr. Riyaz Pawar filed
his reply stating therein that he is not concerned with suit premises and
never in possession thereof.
8. Even Notice of Motion No.2899/2017 took out by the defendant
against the plaintiff and her son for contempt of order dated
30.05.2017 is dismissed on 06.10.2017. At the time of hearing on
Notice of Motion no.2899/2017, it was found that photographs
produced by the defendant in order to show that the plaintiff and her
son entered in suit premises on 30.06.2017 are the same photographs
which were filed by the plaintiff in Notice of Motion no.2790/2017 for
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ad-interim relief. Said notice of motion is also dismissed by this Court
on 06.10.2017. Notice of Motion No.2532/2018 filed by the defendant
is pending. Defendant filed this third notice of motion on the same
ground and cause of action.
9. Electricity bill filed by the defendant is not in respect of suit
premises. Plaintiff is having letter of electricity authority wherein it is
stated that plaintiff is in possession of suit premises. Defendant very
well aware that M. S. Traders absolutely belongs to the plaintiff. From
report of the Court Receiver, it is also clear that the plaintiff is in
possession of suit premises. Defendant was never in possession of suit
premises either before or after filing of the suit. Hence, question of his
dispossession by the plaintiff does not arrive. Section 144 of the C.P.C. is
not applicable as no order or decree or judgment has been set aside.
Defendant has no right to dispossess the plaintiff from suit premises
without following due process of law.
10. Suit premises is a tenancy premises and plaintiff is in possession
of the same through her grand father. Plaintiff filed RAD suit
no.1527/2019 before the Small Causes Court, Mumbai under provisions
of the Maharashtra Rent Control Act for declaration that she is a tenant
of suit premises. Hence, the plaintiff filed application for withdrawal of
the present suit on 13.12.2019. Then the defendant took out present
notice of motion for restitution of possession of the suit premises.
11. Plaintiff denied that suit premises has been given on leave and
licensee basis to M/s. R.J. Homi Center. Defendant is making
contradictory statement that Mr. Riyaz Pawar is carrying business in the
suit premises and plaintiff has taken forcible possession as per the
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allegations in notice of motion for contempt. Defendant is denying
report of the Court Receiver wherein it is stated that plaintiff is in
possession of suit premises but the defendant has not challenged the
report of the Court receiver. Defendant admitted possession of the
plaintiff in suit premises as he took out Notice of Motion no. 2532/2018
to put him in possession of suit premises. Prayer of defendant in notice
of motion no.2532/2018 and present notice of motion are the same and
defendant is trying to misguide the Court ignoring the suit filed by the
plaintiff. Till date, the defendant has not made counter claim. Hence,
both notice of motion filed by the defendant are liable to be dismissed
with costs. Plaintiff can withdraw the suit at any time.
12. Perused the record.
13. Defendant claims that plaintiff taken possession of suit premises
on 30.06.2017 by taking disadvantage of order dated 30.05.2017 when
both parties were directed not to visit the suit premises. Hence,
defendant is entitled for restitution of possession in suit premises.
Advocate for the defendant, in support of his contention relied on the
judgment of the Hon’ble Apex Court in
(i) MANU/SC/8524/2008 (Abhimanyoo Ram V/s. State of U.P. and
others)
(ii) (2012) 3 Supreme Court Case No.522/(State Gujarat and others v/s
Essar Oil Limited and another). Facts stated therein are substantially
different from the facts of present case, hence not useful for the
defendant to substantiate his contentions.
14. Section 144 of the Civil Procedure Code (C.P.C.) deals with
application for restitution and provides that where and in so far as
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decree ( or an order) is (varied or reverse in any appeal, revision or
other proceedings or set aside or modified in any suit instituted for the
purpose, the Court which passed the decree or order shall, on the
application of any party entitled in any benefit by way of restitution or
otherwise, cause such restitution to be made as will, so far as may be,
place the party in possession which they would have occupied but for
such decree (or order) or (such part thereof has been varied, reversed,
set aside or modified) and, for this purpose, the Court make any order,
including orders for the refund of costs and for the payment of interest,
damages, compensation and mesne profit, which are properly
(consequential on such variation , reversal, setting aside or modification
of the decree or order). Explanation to section 144 of the C.P.C. provides
that the expression “Court which pass the decree or order” shall be
deemed to include –
(a) where the decree or order has been varied or reversed in exercise of
appellate or revisional jurisdiction, the Court of first instance,
(b) where decree or order has been set aside by a separate suit, the
Court of first instance which pass such decree or order,
(c ) where the Court of first instance has seized to exist or has seized to
have jurisdiction to execute it, the Court which, if the suit wherein the
decree or order was passed were instituted at the time of making the
application for restitution under this section, would have jurisdiction to
try such suit. Sub section 2 of section 144 of the C.P.C. provides that no
suit shall be instituted for the purpose of obtaining any restitution or
other relief which could be obtained by application under sub section 1.
15. It is a matter of record that Notice of Motion no.2790/2017 filed
on behalf of the plaintiff seeking temporary injunction restraining the
defendant from dispossessing the plaintiff from suit premises is
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dismissed vide order dated 06.10.2017 on the ground that the plaintiff
failed to prove her possession over the suit premises.
16. On the same day i.e., on 06.10.2017, this court dismissed Notice
of Motion no.2899/2017 filed on behalf of the defendant for contempt
against the plaintiff and her son wherein defendant claimed that by
taking undue advantage of status quo order dated 30.05.2017, plaintiff
and her son taken possession of suit premises on 30.06.2017. Vide order
dated 06.10.2017 in Notice of Motion no. 2790/2017 and 2899/2017
filed on behalf of both parties, this Court appointed Court Receiver to
visit the suit premises and file status report. The Court Receiver visited
the suit premises and submitted his report on 19.12.2017. It is
mentioned in the report of Court Receiver that the defendant shown the
suit premises and at that time, plaintiff was present at the suit premises
when the Court Receiver visited the suit premises. It is also mentioned
in the report of Court receiver that suit premises is found under repair /
construction and all scrap material is scattered in the suit premises. It is
also evident from report of the Court Receiver that the Court Receiver
taken photographs of suit premises in presence of the plaintiff and the
defendant. It is nowhere mentioned in the report of the Court Receiver
that either plaintiff or the defendant is in possession of suit premises but
only their presence on the spot are mentioned in said report.
17. Further Mr. Riyaz Pawar of M/s. R.J. Homi Center has stated in
his affidavit in Notice of Motion no.2532/2018 that he is not concerned
with the suit premises and he is not carrying any business from the suit
premises. He further stated that plaintiff is carrying their business of
selling foam in the suit premises in the name of M.S. Trader.
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18. Defendant's Notice of Motion no.2532/2018 for directing the
Court receiver to take physical possession of the suit premises, to
appoint the defendant as agent in respect of suit premises without
royalty and to put him in possession of suit premises is pending.
Thereafter defendant filed present notice of motion when the plaintiff
filed application for withdrawal of the suit. Electricity bills filed on
behalf of both the parties does not establish their actual possession in
suit premises.
19. Without leading evidence by both parties, it can not be said at
this stage that the defendant was in possession of suit premises and
plaintiff took possession of suit premises after filing of the suit by taking
disadvantage of order of status quo dated 30.05.2017 especially when
the plaintiff's suit for injunction is subjudiced although her Notice of
Motion no.2790/2017 for temporary injunction is dismissed on
06.10.2017. Section 144 of the C.P.C. enables only the successful party
to be placed in status quo ante and empowers the court to order
restitution when a decree or an order is varied or reversed in any
appeal, revision or other proceeding. Order dated 06.10.2017 in Notice
of Motion no.2790/2017 and 2899/2017 passed by this Court against
both parties are not till set aside in any appeal, revision or other
proceedings or separate suit. Hence the present notice of motion is not
sustainable either under the provisions of section 144 of the C.P.C. or
under section 151 of the C.P.C. which empowers the Court for passing
any order to meet the ends of justice. Under the facts and
circumstances, present notice of motion is outrightly liable to be
dismissed with costs. Hence following order.
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ORDER
1. Notice of motion no.4943/2019 is dismissed and disposed of.
2. Costs in cause.
(Sunil T. Soor)
Judge
Date : 21.10.2020 Gr. Mumbai.
Typed on : 21.10.2020
HHJ signed on : 21.10.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21.10.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
21.10.2020
JUDGMENT/ORDER signed by P.O.
on
21.10.2020
JUDGMENT/ORDER uploaded on 21.10.2020
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